ARBIND KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is against the Judgment and Order dated 22/28 -2 -2003 passed by 3rd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 456 of 1998 whereby appellant No. 5, Shambhu Prasad has been convicted for offence under Section 302 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and awarded life imprisonment and the remaining four appellants have been convicted for the offence under Section 302 read with Section 149 of the I. P.C. and also awarded life imprisonment. Appellant No. 2, Dhananjay Kumar and appellant No. 5, Shambhu Prasad have been further convicted under Section 27 of the Arms Act and awarded R.I. for five years but the sentences are to run concurrently. Two co -accused namely Sitaram Mahto and Ram Awatar Prasad have been acquitted of the charge under Section 302/149 of the I.P.C. and Section 27 of the Arms Act by giving them benefit of doubt. The prosecution case as contained in fardbeyan of Gayanand Prasad (P.W.9) is to the effect that on 15 -10 -1997 at about 5.45 A.M. while he was milching his cattle in front of his house near the road on the north and his nepehew Sunil Kumar (the deceased) was washing his mouth while sitting on his Tube -well situated north of Khanta, in his orchard, at that time appellant No. 1, Arbind Kumar, appellant No. 2, Dhananjay Kumar and appellant No. 5, Shambhu Prasad, all armed with pistol and appellant No. 3, Vir Mani Kumar with lathi and appellant No. 4, Devendra Prasad came there and surrounded Sunil Kumar. Appellants Arbind Kumar and Vir Mani Kumar caught hold of Sunil Kumar and then Devendra Prasad started assaulting him with leg and fists. On hulla the informant (P.W.9), his son Sanjay Sinha (P.W.7), co -villager Naresh Prasad (P.W.8) and others wanted to go to the place of occurrence but they were prevented due to firing by co -accused Sita Ram Mahto and Ram Awatar Prasad (both acquitted) made towards them. Appellant No. 5, Shambhu Prasad and appellant No. 2, Dhananjay Kumar fired at Sunil Kumar. Shot fired by appellant No. 2 hit Arbind Kumar, appellant No. 1 and shot fired by appellant No. 5, Shambhu Prasad hit Sunil Kumar the deceased on the back of his chest. On receiving the injury Sunil cried, fell down and became unconscious. On seeing Sunil Kumar fallen down the accused persons fled away. Thereafter Sunil Kumar was taken to police station and from there to Biharsharif Hospital with the aid of police. From there he was referred to P.M.C.H. on account of his serious condition. At about 10/12 hours he was brought to P.M.C.H. Patna where the doctor declared him dead.

(2.) The reason of the occurrence was given out as old enmity. The aforesaid fardbeyan of P.W.9 was recorded by S.I. of police R.P. Singh of Pirbahore police station, Patna on 15 -10 -1997 at 1.30 P. M. It was transmitted to the concerned police station Rahui and on receipt of the fardbeyan and inquest report formal F.I.R. was drawan at Rahui police station on 19 -10 -1997 leading to Rahui P. S. Case No. 205 of 1997 and thereafter investigation began which was conducted by P.W.10, Safaur Rahman, Sub -Inspector of Police who at the relevant time was posted as Officer Incharge of Rahui police station.

(3.) AFTER recording F.I.R. the I.O. inspected the place of occurrence, recorded statement of some of the witnesses and submitted charge sheet against all the seven accused persons. He also received postmortem report from P.M.C.H. but could not record further statement of the informant or the statement of Sanjay Sinha (P.W.7) and Naresh Prasad (P.W.8), the two witnesses whose names are mentioned in the fardbeyan given by the informant, Gayanand Prasad (P.W.9). After cognizance all the named seven accused were committed to the court of sessions. They pleaded not guilty to the charges framed against them and were put on trial. The defence of the accused persons is general denial of their involvement in the occurrence. From the suggestions and arguments it appears that the defence has also challenged the place and manner of occurrence. It has examined two defence witnesses who are formal in nature and have proved the F. I. R. of counter case lodged by appellant Shambhu Prasas as Exhibit -A and the injury report of appellant No. 1, Arbind Kumar as Ext. B. The Ext. A shows that the counter case i.e. Rahui P.S. Case No. 202/97 was recorded on written report of Shambhu Prasad on 15 -10 -97 at 8 P.M. against 9 persons including the informant of this case P.W.9, his son P.W.7, his nephew, P.W.8, father of the deceased, P.W. 5 and also the deceased Sunil Kumar. The injury report shows that Arbind Kumar was examined by the doctor at Biharsharif on 15 -10 -97 at 8.05 A.M, and the doctor found two fire arm injuries on his body which appear to be wound of entry and wound of exit.